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TMI Blog2025 (5) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... T-31-32-2023-24 dated 28.04.2023 passed by the Commissioner (Appeals), CGST Meerut. Appeal No.E/70417/2023 has been filed by the Appellant Company and Appeal No.E/70601/2024 has been filed by the Director of the Appellant company. 2. The facts of the case in brief are that the Appellant was registered with Central Excise vide Registration No. AACCP0977AXM007. The Appellant was engaged in the manufacture of 'Un-coated Kraft papers and Paper Board falling under HSN 480443100. On the basis of an intelligence that the Appellant is resorting to suppression of production and removing goods without payment of excise duty, search was conducted at the factory of the Appellant by the Officers of DGGI, Meerut on 28.11.2018. During search, 3 pen drive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty. The SCN was adjudicated vide Order-in-Original No.25/AC/MZN-II/2021-22 dated 28.02.2022 passed by the Assistant Commissioner, CGST, Div-II Muzaffarnagar, whereby demand was confirmed along with interest and penalty of equal amount was imposed. Being aggrieved with the Order-in-Original, the Appellant filed appeal before the Commissioner (Appeals), CGST, Meerut. The Commissioner (Appeals) upheld the Order-in-Original. Being aggrieved with the Order-in-Appeal, the Appellant has filed the present appeal before the Tribunal. 3. Shri Nishant Mishra learned Advocate appeared on behalf of the Appellant and contended that the demand of duty is based only on data stored in pen drives. He submitted that the alleged pen drives which were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, which was alleged to have been cleared clandestinely were discussed in the SCN. The demand is based only on the statement of some persons of the factory and only on the basis of statements, no demand can be confirmed. Learned counsel, contended that in order to establish the case of clandestine removal, it was essential for the Department to adduce evidence indicating purchase of extra raw material, extra deployment of workers and also extra consumption of electricity. The Department could not produce even a single bill or invoices pointing out purchase of raw materials, chemicals etc. for the manufacture of goods which were allegedly removed clandestinely. In absence of such evidences, the allegation of clandestine removal is not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was confirmed by the Commissioner (Appeals) solely on the basis of the confessional statement of the director of the company. We further observe that it has not been clarified from which computer of the company, data was stored in the impugned pen drives. It is a settled principal of law that evidences available in electronic modes are accepted only when conditions laid down under Section 36(B) of the Central Excise Act, 1944 are fulfilled. It prescribes that :- "(2) The conditions referred to in sub-section (1) in respect of a computer printout shall be the following, namely :- (a) the computer printout containing the statement was produced by the computer during the period over which the computer was used regularly to store or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation and the computer was operating properly. In the present case, pen drives were not resumed from office of the Appellant but from the worker's quarters and also there is no certificate taken by the Department as provided in sub clause (2) of Section 36(B) of the Central Excise Act, 1944. In the above scenario, the data retrieved from the pen drives cannot be accepted as tangible evidence. We may like to examine as to whether search was made as per provisions of Section 100 of the Cr. P.C. read with Section 18 of the Act or not. It is seen that the pen drives were not seized under proper seizure memo. Also, it is not clear as if seal was put on pen drives at the time of search and was intact and is duly signed by panchas. Second pancha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parimateria. It is evident from the panchanama, that the investigating officer had failed to follow the safeguard as mandated under Section 36B of the Act. We have also considered the judgment of M/s. Popular Paints & Chemicals vs. C.C.Ex. & Cus., Raipur, wherein this Tribunal vide Final Order Nos.52716-52718/2018, dated 06.08.2018 under similar facts and circumstances, has set aside the demand based on such unauthenticated data. In view of the above, we hold that charges of clandestine removal based on such unauthenticated data is not sustainable and are therefore, set aside. 10. It is evident from the panchnama that the Department failed to gather any of documents from the factory of the Appellant. We have also considered the following ..... X X X X Extracts X X X X X X X X Extracts X X X X
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